Social Media

For several years now, there has been an ongoing debate about whether the company or employee owns the employee’s LinkedIn contacts? The argument goes kind of like this: (a) the company takes the position that LinkedIn business contacts have been developed on the company’s time and dime and as a result they should belong to the company; (b) the employee says these are individuals I’ve known over time well before I was employed by the company, yes some of them were developed during my relationship with the company, but ultimately that is a part of any business and they should belong to me. Also, the LinkedIn account is in my name not the company’s name and it is my personal property.

Employer’s get concerned about contact lists such as these because they are so easily leveraged. The successful salesperson who probably has hundreds of contacts can inform or communicate with his or her customers by preparing a LinkedIn update or reaching out to the customer directly through a LinkedIn email in a matter of seconds. The days of having to go through the customer lists and call or mail each individual customer are over. Companies who have a departing employee get very nervous about this sort of thing.

Results from courts have been mixed on these types of cases but generally the employee has prevailed when it is their account. English lawyer Stephen Musgrave  provided an analysis of several UK cases addressing LinkedIn contacts. In the Hays case, the court found that an employee could not migrate contact information from a confidential business database to his LinkedIn account at the end of employment. Musgrave’s take away, which I concur with, is that when a “LinkedIn account is misused by an employee in the course of establishing a competing business, then the court is likely to find in favor of the employer.” He also contends that some factors  to consider are:

1. Did the employee maintain the account on their own accord or was it requested by the employer?
2. Does the employee actually manage the account or does some other 3rd party?; and
3. Who actually owns the LinkedIn account?

The take away from these and other cases is that there is no one-size-fits-all solution from the employer or employee’s perspective on these types of cases. The employee who has held a LinkedIn account for several years and it preexisted his or her current employment position in a much different spot than someone who just recently started their account and populated his or her contacts with company customers.

Musgrave makes the following suggestions for employers when they instruct employees to set up social media accounts and want to try an maintain some control over the account:

1. Use the company email address aas the employee address;
2. Use a work photo when setting up the LinkedIn account for the employee;
3. Have the company input all of the text into the account profile;
4. Tell the employee what password to use;
5. Make building up the employee LinkedIn profile with contacts a requirement of the employee’s role; and
6. Tell the employee that upon leaving its employment, content has to be surrendered and the password changed because the employee has in fact been building up a database on the employer’s behalf during working hours.

These are all good suggestions and policies will evolve over time as we receive more guidance from courts. I do wonder if an employee who believes the account does not belong to them will move to other networking devices such as Facebook?  

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